Posts tagged ‘Facebook.’

Facebook may have started out as a networking site for teens, but these days many parents have their own Facebook account as well. Ostensibly, its purpose is to link them to family and adult friends with whom they want to stay in touch, or to share news, events and milestones.

But as I have written before , information on Facebook and other social media sites can be used / misused by parents in family litigation; for example one parent can gather incriminating or unflattering information about the other.

But even leaving aside this “Facebook-as-evidentiary-weapon” approach, separated and divorcing parents should be aware that the information they innocently post on such sites can be harmful to the children.

Indeed, in a B.C. custody case called Bain v. Bain, the court concluded that the father’s decision to post photos of his child on Facebook demonstrated that he had questionable judgment as a parent. In ordering the father to both remove the photos and refrain from posting comments about the children in the future, the court wrote:

[The father] has made available on the internet by way of Facebook, pictures of the children in their very early years. There is a danger of publishing such pictures in this day and age, which should be apparent to any parent, let alone the father of two small daughters.

But threats to a child’s safety, privacy, or emotional well-being can be indirect as well. For example, a teenaged child may be embarrassed to have a parent post pictures on Facebook of a recent Vegas holiday, or flaunting a new (post-divorce) romantic interest. A child may lose respect for a parent after finding inappropriate comments or posted photos of behavior that is questionable for an adult, let alone a parent – even if that conduct takes place during non-custodial time. The parent-child relationship can be adversely affected if the child learns about the parent’s social life or relationships not directly, but rather through status updates.

The key is to view the posted information from the child’s perspective: What may seem relatively innocent to share among adult friends can be mortifying to a child who is at a development stage where the opinions and attitudes of peers is paramount. For this reason, parents need to turn their mind to adjusting privacy settings on Facebook and other social media sites like Facebook, to protect their children if necessary.

What is the bottom line? All parents – whether separated, divorced, or otherwise – need to understand how the modern trend towards living life as an open book on the internet might affect their kids. Remember: “What Happens in Vegas… Ends Up on Facebook”.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

What’s in a Name? Mother Not Faulted for Having Children Use Her Name on Facebook to Avoid “Stigma”

This is another one of those cases that illustrates some of the more arcane aspects of divorce, and some of the more esoteric points affecting children that must be considered when parents decide to end their union.

The couple in this case had been married less than ten years when they decided to separate; they had two children together. Upon separation, the mother was granted interim sole custody of the children, while the father was allowed interim access. However, the mother testified that periodically the father cancelled scheduled access visits “due to work, vacation or other plans he ‘can’t get out of’”.

Nonetheless the father applied for custody of the children, as part of numerous applications aimed at resolving the outstanding issues between the parties. In this context, the father claimed that the mother had been actively obstructing his relationship with the children, and had been alienating them from him. As evidence of this, he claimed among other things that:

• the mother had registered the children for hockey under her surname (rather than his), and their hockey jerseys bore her surname on the back; and

• the children’s Facebook accounts use the mother’s surname as well.

(And it should be noted that because of the use of the mother’s surname on the jerseys, the father refused to make any financial contribution to the children’s hockey-related costs).

The mother testified that the reason for this decision was simply so that the children would avoid any stigma: the children’s paternal grandfather had been convicted a few years earlier for various sexual crimes, including some that involved the children’s own cousins as victims. She did not want the children to be associated with their grandfather’s name (and unavoidably, their father’s name) on social media and in their sports milieu.

The court considered the evidence, and was not persuaded that the mother had been trying to alienate the children from their father. For one thing, her decision to have the children use her surname was limited to a relatively narrow sphere of the children’s lives and activities; moreover she had worked with the police in connection with her concerns over Facebook, and her decision on the surnames in that regard. The court wrote:

… I am not prepared to make any finding of fault against the respondent with respect to her decision to use the G. surname for the children’s hockey registration/jerseys and/or their Facebook account. The respondent gave uncontradicted evidence that she used the G. surname in those two specific instances specifically in response to the risk she assessed arising from the criminal conviction against the applicant’s father for sexual interference with children and the proximity of his probation office to the residence of the children. It is not the function of this Court to decide whether the respondent was right or wrong in taking those limited precautions but rather whether she has acted reasonably. I find that she has acted reasonably and in making that finding note that the respondent used the M. surname for the children’s school, doctors and otherwise. I make the related finding that the respondent has not obstructed the applicant’s relationship with the children on the basis of her registering the children using the G. surname for their hockey and Facebook registrations.

The court also pointed out that – the complaints about hockey and Facebook notwithstanding – neither the father nor any of his witnesses had given evidence to establish any specific incidents to suggest that the mother had tried to obstruct or deny the father’s access to the children.

Accordingly, and after balancing a host of other considerations that are germane to a final determination on custody and access, the court ordered that sole custody was left in the mother’s hands, although she was to consult with the father on major issues. The father’s access was to continue.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

A local business has just boosted the Whitby Wolves PeeWee BB rep hockey team with a grant of $2,500.00. This grant will be used in a variety of ways such as team jerseys, equipment and specialized on ice training. This grant will support the 17 players registered with the team who have the opportunity to further develop their hockey skills in a fun and competitive environment.

The Russell I. Alexander Charitable Giving Fund provides financial support to those organizations that are doing great work, but may not be as visible as some of their larger counterparts.

A few words from Head Coach Greg Wight, “The team is excited to be selected by the Russell I. Alexander Charitable Giving Fund, as not only does the team of seventeen girls aspire to athletic excellence, they will also be involved with giving back to our local community. Throughout the season the girls will not only develop their hockey skills but will be supporting a variety of charities such as the Food Bank and Breast Cancer Awareness. The team is excited to pay the generosity of the RIA Charitable Giving Fund forward and help make a difference within our community.”

About Russell I. Alexander

Russell I. Alexander is a law firm dedicated solely to family law. With experienced lawyers and staff of 10 people, the firm provides guidance on matters relating to family law. For additional information about the Russell I. Alexander Giving Fund, please visit www.russellalexander.com.

Last year the Russell I. Alexander Giving Fund had a very successful Facebook campaign to raise funds and awareness for the Kawartha Lakes Humane Society capital project.

Be Careful About Who Your “Friends” Are; Facebook as a Source of Evidence in Family Law: Part 4

In recent months I have written on a few occasions about the use of Facebook in family law matters, for example situations where one ex-spouse was using it to gather unflattering information about the other, usually as a tool in a custody dispute. Reference:

The primarily lesson to be learned from those scenarios is that the social media-based access to our private lives that we give others can be used and misused in unanticipated ways.

Yet another illustration of this concept occurs came to my attention recently, in a situation involving a fellow lawyer whose imprudent choice of whom to “befriend” on Facebook led to the misappropriation and unauthorized use of pictures of himself.

The scenario was described by legal marketer Susan Van Dyke, whose client was a partner in a law firm. As a means of promoting himself and the firm, the lawyer created a Facebook profile and added many Friends to his list. Amongst them was a reporter.

This reporter happened to be doing some writing for the law firm’s media relations campaign, which included mention of this lawyer. However, the reporter was unsatisfied with the photograph provided by the lawyer’s publicist. The reporter then took it upon herself to “hunt for more interesting photos” on the lawyer’s Facebook profile. Fortunately, the photo that was eventually published to accompany the reporter’s written article was not an embarrassing one (it showed the lawyer standing next to a high-profile public person), but it was certainly not the one that had been approved and endorsed by the lawyer himself.

This incident shows the importance of taking care to ensure that the photos and other information we make available on social media sites such as Facebook, Twitter and even LinkedIn has been carefully vetted to ensure that it cannot embarrass us or harm our reputation. (And this includes not only those images that we upload ourselves, but also images posted by others in which we have been “tagged.”)

Migrating this to the realm of family law disputes, it easy to imagine an ex-spouse (or soon-to-be-ex) sifting through photos of the other spouse on Facebook, looking for images that are damaging to his or her reputation or legal position. Especially for an ex-spouse who is intent on painting the other spouse in an unflattering light in court (for example to gain leverage in a custody or access dispute, or to disprove the other spouse’s claims of physical inability to work so as to preclude an increased need for spousal support) Facebook and other social media sites are a free and fertile source of potential ammunition.

But whatever the unanticipated use might be, the bottom line is this: if an image or information has been posted, it available for public consumption and can be used against you, even by a friend, but especially by an ex-spouse or ex-partner.

Susan Van Dyke offers several “essential Facebook tips” to help avoid having information or photos misused in this way. These include:

1) knowing who your “Friends” are;

2) avoiding posting anything that can come back to haunt you;

3) checking your Facebook security settings;

4) scanning all social media sites for photos in which you are tagged (and requesting that they be removed if they are not flattering);

5) creating a separate Facebook page just for family and personal photos.

Facebook is here to stay — and with all of its unforeseen dangers. Those who are embroiled in family law disputes should be particularly vigilant about what information they are making available, and how it is being used.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at ww.RussellAlexander.com

Now, in a U.S. case, a Connecticut judge has ordered that a divorcing couple exchange passwords for their respecting Facebook accounts, and for any dating websites on which they were active members.

The unusual September 2011 ruling was part of the divorce trial of Stephen and Courtney Gallion, which included a custody dispute over the couple’s children. The husband was asking the court to award him full custody.

The password exchange was ordered by the court after the parties’ lawyers argued that mutual unrestricted access could provide evidence which could be used in the parties’ custody matter. The order was framed as part of the customary obligation on litigants to relinquish any “responsive material” to the other, and was extended in this case to encompass access to the social networking sites. More to the point, the husband hoped that by having access to the wife’s Facebook, MySpace, Match.com and EHarmony accounts, he would be able to collect evidence that she was not the appropriate custodial parent for the children.

The judge imposed certain stipulations, specifically that the password exchange should be carried out only by the parties’ lawyers, and that neither spouse may post messages to Facebook or the dating sites in the guise of or purporting to be the other spouse. They were also prohibited from deleting any posts or messages from their own sites.

The judge’s order – which does not yet appear to have a counterpart amongst Canadian judgments – raises interesting non-family-law related questions such as:

1) whether it violates the terms of service of social networking sites (which prohibits the sharing of passwords); and

2) whether the order allows for violation of privacy because it gives each spouse unfettered access to private information such as the other’s “friends” list.

Nonetheless, it is an interesting development in the ever-expanding realm of family cases that involve Facebook and other social networking sites.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

In my last post, I discussed a few interesting cases in which Facebook pages was used or scrutinized by the family courts. In particular, these were cases in which Facebook postings or pages were used – sometimes in unexpected ways – as a source of evidence as to character, motivation, or the truth of allegations in a family law dispute.

In some other cases, however, Facebook and other social networking sites have also been used by spouses or family law litigants in more direct and nefarious ways: i.e. as a vehicle for getting revenge on a separating spouse, or as a means of surreptitiously getting around an unfavorable order or direction from the court.

As these cases illustrate, this is never a good idea, since this type of conduct is also taken into account by family courts when deciding family law and related matters.

For example, in a B.C. case called Nesbitt v. Neufeld, the father and mother had been involved in an ugly and protracted family law battle, in an attempt to resolve legal matters relating the young child they had together.

The father was a family doctor, though not practising. Against the advice of the court, he opted to represent himself throughout the litigation. The mother was a successful businesswoman. At some point, she had given him one of her old home computers, which contained some of her private correspondence. The father used the information he found on those computers to defame the mother: for example, he sent e-mails and photos from her dating profile to the Rotary Club where she was an active member. The photos were of her and their daughter, and in his letter to the Rotary Club the father cast aspersions on her for using the child’s photo and luring “potential pedophiles” via the dating site, commenting that “it must be difficult for someone at her age and with her personality to attract men”.

He also created a website titled “Wicked Wendy Neufeld”, which included material from the family court litigation, the Rotary Club emails, various private correspondence to or from the mother, and information derived from personal knowledge that the father had about her. It included comments that the mother was “mean”, “weird” and “sneaky”.

Finally, he also created a Facebook page, which was called the “Wendy Neufeld Support Group”. It contained material that the court found highly inappropriate, as illustrated by the court judgment:

6. The Facebook Page

39 Though discovered on March 10, 2009, Ms. Neufeld said the Facebook Page was up since October 2008. Under the heading “Recent News”, there were a number of sentences reading: “Wendy’s mother died a few months ago. Wendy’s father died a few weeks ago. Her three tragic divorces. The affair with a married man. The suicide attempts. The boyfriend who got deported back to Egypt for being a male prostitute”.

40 I find that Dr. Nesbitt was the administrator and creator of the Facebook Page. Later, in November 2008, he wrote what he called a “eulogy” about Ms. Neufeld’s father and posted it on the Facebook Page (Affidavit of Dr. Nesbitt, sworn September 8, 2009, para. 113). Sarcasm is evident throughout the missive. He did this after a consent restraining order had been issued on September 8, 2008 in the family court proceedings prohibiting Dr. Nesbitt from making any more disparaging comments about Ms. Neufeld and members of her immediate family. Dr. Nesbitt had been advised correctly that he could not defame the dead. This did not stop Dr. Nesbitt from annoying those that were still alive.

41 That Ms. Neufeld did not want or need a “support group” is evident. That Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness.

Not surprisingly, the court found that the Facebook page and the so-called “support” page were among the numerous means by which the father published mean and malicious comments about her, as a means of scandalizing and defaming her. Moreover, the fact that the father released the mother’s private communications to third parties such as the Rotary Club amounted to a violation of her privacy. Ultimately, he was ordered to pay the mother $40,000 in damages.

In another B.C. case called Bains v. Bains, the mother sought sole custody and guardianship of the two children of the marriage, with supervised access to the father. The father had been an abusive husband throughout the marriage, which abuse resulted in assault and an order for anger management counselling. Among other things, the father began to turn the children against their mother by making derogatory remarks about the mother and her parenting skills in front of the children. He blamed the separating on the mother, told the children that she had ruined their lives and was stealing their money. He was emotionally manipulative, and also listened in on phone calls between the mother and the eldest child, and elicited pity from the children through certain self-centred conduct. He had particularly succeeded in alienating the oldest child, Kiana, from the mother: Kiana started being critical of the mother’s financial management and parenting, and stopped being affectionate with her. The younger child showed fewer signs of parental alienation, but still had difficulty sleeping unless he slept in the father’s room.

Despite having been ordered not to contact the children except with supervision, the father continued to have secret contact with the oldest child through his Facebook account, which also featured negative comments about the mother. He also used his Facebook “friends” to pass on information to the eldest child. About this conduct, the court wrote:

65 While Mr. Bains has not contacted [the daughter] Kiana directly outside of the supervised visits since supervision was reinstated, he has continued to permit her to access him via Facebook on the internet. He permits Kiana to be a “friend” who is able to read any of his public comments. She also has his password which permits Kiana to see anything Mr. Bains posts on his Facebook account. While Ms. Bains asked Mr. Bains to change his password, and prevent Kiana from accessing his Facebook, he has ignored her request. Although he testified that changing the password would restrict his other friends from viewing the Facebook, “friends” do not normally have access to his password and do not require a password to access his public areas. On his Facebook account Mr. Bains complains of the cost of the trial and makes negative comments about Ms. Bains. While he claimed these are private conversations that Kiana cannot access, Mr. Jespersen testified that with password access Kiana may view anything that Mr. Bains sees and puts on his Facebook. Mr. Jespersen’s evidence is reviewed below. He is an expert in computers and has many years of experience with the Internet. Mr. Bains denied that Kiana has his Facebook password; however, he acknowledged that she set up his Facebook and thus would likely have created his password. He also ultimately agreed that with his password anyone can see his private conversations.

In the end, the mother was successful in obtaining sole custody and primary residence of the children; the father was awarded supervised access. The court considered the Facebook page as evidence that the father was alienating the children from their mother, and was indirectly exposing them to disparaging comments about her. About the use of Facebook in particular, the court wrote in its order:

(c) Mr. Bains shall have no other contact with the children, directly or indirectly, or through other persons, and this prohibition specifically includes contact by telephone or cellular telephone, via the internet, and through any third party via any of these means of communication. Mr. Bains shall immediately change his Facebook password to ensure Kiana has no access to his account and he shall immediately remove her name from his list of “friends” so that she is not able to read messages on his public wall. Mr. Bains shall also immediately advise all of his adult friends to cease contacting Kiana by any means, including via the internet and cellular telephone. If Mr. Bains breaches this term of the order, Ms. Bains is at liberty to unilaterally terminate the supervised access to Kiana described in paragraph (b), subject to Mr. Bains’ right to apply to the court to reinstate this supervised access and I remain seized of any such application.

Clearly, when adjudicating on family matters courts are now being forced to deal with the use of Facebook and other similar cites in their decision-making, and must address the extent and nature of future use in their family law orders.

Facebook, Twitter and other social networking sites are now a routine part of many people’s lives, and have become a convenient means of interacting with others. What some people do not realize, however, is that postings and activity on Facebook and similar sites can be used in family litigation – and usually in unexpected and unforeseen ways.

For example, in a very recent Ontario decision called Jesmer v. Delormier, the father applied to the court for access to his child, a boy named Wyatt. The mother opposed this, claiming that the father and his family should have no access to Wyatt whatsoever.

After a hearing, the court ordered that the father should be given access, but only on a supervised basis. Nonetheless, he never got a chance to fully exercise the access because the mother threw up obstacles to thwart it. The mother wrote the following Facebook message to the father’s sister:

Hi Meagan,

Okay so what I wanted to say. I lied to the judge and it was wrong. I’m hoping this isn’t going to backfire but I think that the best interest of Wyatt is with Alex and that she is right in some ways I think Craig should have supervised visits if anything but Craig is not capable of caring or looking after kids. He has a violent anger which is why I didn’t say the truth that day I was scared and which is why I left. Now there are numerous things I can bring to the judge about Craig and how he is unfit to have any kids without supervision. I do think Wyatt should know him but I wouldn’t trust Craig with any kids either. I did everything and he would leave at long times with me taking care of the kids he never changed Leiland’s diapers I was always the on[sic] to change them. He yelled at me and the kids many of times. I am willing to tell the judge this but I don’t want to be named. Not sure how this would happen though. All I would like out of this is 15,000. I could use the money not going to lie.

I hope you all have a merry xmas and a happy new year.

This Facebook message came to the court’s attention, and the hearing was re-opened to allow the court to consider this new evidence. When confronted, the mother claimed that the Facebook message was untrue; she said she had simply sent it in a fit of fury when, post-separation, she had called the father’s new house only to have an unknown woman answer the phone. She said she wrote the Facebook message to hurt the father.

The court found that the mother’s explanation with respect to the Facebook message simply did not ring true. And whether true or not, the fact that she even sent it displayed “a complete lack of judgment and a total disregard to [the child] Wyatt’s best interests”. The court also noted that she came up with the current explanation a full three months after she posted the Facebook message, and – conveniently – at a point when she and the father had apparently reconciled. Accordingly the court could not determine whether the mother had lied in court or had lied on the Facebook message. It therefore disregarded her evidence in its entirety.

Similarly, in a case called M.J.M. v. A.D., the court reviewed the father’s Facebook page as evidence of his character and his credibility. It observed:

48 With respect to the father’s complaint that the mother is attempting to fool the Court about him, I have heard the evidence and observed the demeanour of both parties while giving their evidence.

49 The mother’s demeanour was straightforward and direct. She answered the questions she was asked and did not try to present herself in a better light. This positively affected her credibility.

50 The father’s demeanour was at times overly self-confident. At times in his cross-examination he answered questions with questions and was evasive. At times he was contrary; at times he shrugged when answering questions so that he displayed and conveyed a challenging “so what” attitude. He gave the grandmother the “finger” during her evidence, which was remarked upon by the grandmother and which I observed. This was both disrespectful and displayed the kind of dismissive attitude he has to the mother’s family and the mother. He did not present himself in the best light at a time when the child’s best interests called for the same. All this negatively affected his credibility.

51 Where there is a difference between the evidence of the mother and the evidence of the father, I accept the evidence of the mother.

52 In addition to the conflict between the parties, the father has demonstrated and displayed publicly (at least to his some 95 “friends” on his Facebook page) his disregard and callous lack of consideration of the mother, and his demeaning and dismissive attitude to her. On his Facebook page is a link to another site entitled “[the father] has a crazy x!”. Additionally, the father has an obscene and crude reference to a “porno actor” on his earlier Facebook page. The father refers to his Facebook page as “fun” and a place to have “fun”. This is hardly funny in the unique circumstances of this case. I also note that one of his “friends” on his Facebook page is his common-law partner’s twelve-year-old daughter. This child has been exposed to the father’s rancour and attitude to the mother. At the same time, the father has posted pictures of the child on his Facebook page. He has thereby linked the child to his rancour to the mother and, despite her young age, also exposed her to adult-appropriate matters which the father thinks are fun. That the father would do this is surprising and speaks to the issue of the whether the father can protect the safety of the child absent a detailed Court order. This does not speak to an adult consideration of the child’s best interests. I ordered him to remove the child’s picture from this site and not to post the child’s picture on any other Internet sites. In my opinion, posting her picture like this both puts the child at risk and exposes her to risk.

…

Overall, there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child.

Finally, in Himes v. Himes, which was another Ontario case, the court had to consider whether an exchange between spouses on Facebook could be introduced as evidence. In that case, the wife had approached the husband to see whether he was willing to discuss an application for child access that he had launched. The wife was afraid to talk to the husband directly, because she found him controlling. However, she agreed to talk to him on Facebook, and they did so for a few days. The wife wanted to introduce this Facebook exchange as evidence, but the court characterized them as essentially being settlement discussions, which were privileged even if both parties consented to have them introduced as evidence of what each was proposing to the other. Accordingly the court disregarded the Facebook exchange entirely.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.